Protection of personality rights

Personality rights include, inter alia:

• Right to liberty
• Right to physical integrity
• Right to privacy and family life
• Right to likeness
• Right to protection of the name
• Right to protection of honour and dignity

Protection of personality

The right to the protection of personality is a subjective private personal right, which is absolute in nature and therefore applies erga omnes (towards everyone). An individual whose personality rights have been affected has the right to claim that the unlawful interference be refrained from or its consequence remedied.  Specifically, the aggrieved party has the following claims:

• Claim seeking a prohibitory injunction
• Restitution claim
• Satisfaction claim
• Declaratory claim
• Special claims (right of reply, right to additional explanation, etc.)
• Claim for damages (or compensation for non-material damage)
• Claim for recovery of unjust enrichment

The prerequisite for the establishment of a claim is therefore an interference with personality rights, which must be found unlawful (in violation of the law). In particular, it is necessary to investigate whether the affected party agreed to the interference of their personality or whether the interference is expressly permitted by law. A claim seeking a prohibitory injunction consists in refraining from an act by which the wrongdoer jeopardises or violates the personality right of the individual concerned (e.g. prohibition of publication of defamatory or private information, etc.). A restitution claim is a claim seeking the removal of harmful consequences and restoration of the original state (e.g. removing a social media post). These claims may also blend; for example, the aggrieved party may seek an injunction against further dissemination of a photo, which implies its removal in the case of a website. A satisfaction claim represents a form of compensation to the aggrieved party, either in the form of moral satisfaction, i.e. particularly an apology, or monetary satisfaction, most often in the form of a lump sum. A declaratory claim is aimed at establishing or stating that a certain act has jeopardised or violated the personality right of the individual concerned. Special claims arise from special legal regulations that protect personality rights outside the Civil Code (e.g. the Press Act or the Broadcasting Act). General claims include claims for damages (or compensation for non-material damage) or recovery of unjust enrichment, which are regulated in Part Four of the Civil Code under obligations arising out of a tort or delict.

Restrictions of personality rights

An interference with personality rights may be permitted on the basis of the consent of the individual concerned (e.g. consent to take a photo) or under the law, i.e. statutory licences (see below). For example, capturing an individual’s likeness in any way that would allow the individual’s identification or distributing the likeness is only possible with the individual’s consent. The law does not prescribe any form for this consent, therefore, it can also be granted tacitly. However, consent is not required if the image or visual recording is made or used to exercise or protect the rights or legitimate interests of other persons (e.g. a recording for the purposes of court proceedings) or for scientific or artistic purposes (e.g. a visual recording of a procedure for medical research), etc.

The same applies to, for example, an individual’s privacy. No one may interfere with the privacy of another person without the person’s consent or a lawful reason. In particular, it is prohibited to intrude on an individual’s “private premises”, which is a broader concept than an individual’s home and includes, for example, the place where the individual practices his profession (e.g. an office). The private life of an individual cannot be monitored in any way or audio or video recorded. Documents of a personal nature (including, for example, business correspondence) are also protected to the same extent. However, in order to ensure the public interest in information to the benefit of news media, the Civil Code provides for a statutory licence for the use of visual and audio recordings and expressions of a personal nature, as well as other statutory licences.

Principle of proportionality

Nevertheless, an interference with personality rights must never be disproportionate, even if it is based on a statutory licence. These statutory licences cannot be used contrary to the purpose for which they are intended and to the unjustified detriment of the individual’s personality. If the interference is found to be disproportionate, it is an unlawful interference, even though the conduct as such was otherwise permissible.

Conclusion

Affected individuals may assert claims arising from the right to the protection of personality in various ways, but in most cases, they seek mainly judicial protection. The above-mentioned claims correspond to the respective types of motions to commence proceedings (actions), where each is subject to specific statutory requirements. It is always advisable to consult the next steps as the suitability of the solution depends on the specific circumstances of each case and its choice will often be determinant of the outcome of the dispute. If you believe that there has been an unlawful interference with your personality rights, do not hesitate to contact our law firm, and we will resolve the issue with you.

What issues do we typically handle for clients in relation to the protection of personality rights?

• What to do if my personality rights have been violated?
• Legal representation in personality protection actions
• What claims arise from the interference with my personality rights?
• Representation in a dispute concerning infringement of personality rights
• Legal advice on defamation or insult
• How to prove a lie damaging my person
• Stalking counselling
• Violation of neighbourly coexistence
• Restrictions and disputes with neighbours
• Abuse of likeness
• Abuse of name and surname
• Recording and abuse of audiovisual material of my person without my consent
• Racist attacks on my personality
• Disrespect or disregard for my faith
• Sexual assault or threat to my person